https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/351

In re Estate of Masero (Deceased) (Succession Cause E065 of 2025) [2026] KEMC 351 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEMC 351 (KLR) Republic of Kenya In the Kehancha Law Courts Succession Cause E065 of 2025 JP Nandi, SPM June 10, 2026 IN THE MATTER OF THE ESTATE OF CHACHA MWITA MASERO (DECEASED) Between Jackson Gati Chacha Applicant and Gabriel Mwera Boke 1st Respondent Francis Magaiwa Omokereri 2nd Respondent Martin Omokereri Magaiwa 3rd Respondent Peter Mwita Fanuel 4th Respondent Esther Fanuel Mariba 5th Respondent Ruling 1.The petitioner/applicant filed a notice of motion dated 14th May, 2026 seeking for the following orders:-1.Spent2.That pending the hearing and determination of the instant suit, therebe issued an order of temporary injunction restraining the respondents either by themselves, agents, assigns and/or whatsoever claiming through them from interfering with the original title No. Bukira/Bwisaboka/845 originally registered in the name of Chacha Mwita, the deceased herein.3.Titles Nos. Bukira/Bwisaboka/4238, 4239,4240, 4241,4242.4243,4244,4245,4246 and 4247 being subdivisions of title No. Bukira/Bwisaboka/845 and Bukira/Bwisaboka/5509 which was a subdivision of Bukira/Bwisaboka/4244 but closed on 5/11/2025 upon subdivision to Bukira/Bwisaboka/17478 and 17479 be cancelled and the parcel reverted back to the original title No. Bukira/Bwisaboka/845.4.Pending the hearing and final determination of this succession cause, the respondents either by themselves, agents, assigns and/or whomsoever claiming through them be barred by way of a mandatory injunction from intermeddling with the original land parcel Bukira/Bwisaboka/855.5.Costs of this application be provided for. 2.The application is based on the grounds on the face of the application and the supporting affidavit of Jackson Gati Chacha sworn on 14th day of 2026. The grounds are that the applicant is the son of the late Chacha Mwita Masero alias Chacha Matiko to whom the petition for letters of administration intestate relate. The said deceased was the original registered owner of parcel Bukira/Bwisaboka/845. That the deceased was survived by Jackson Gati Chacha, Josephine Boke Chacha, Binister Gati Chacha and Elizabeth Nyairabu Chacha. 3.That before the death of the deceased in 2007 he had sold portions of his land to John Rioba Nyaitange, Evans Ragira Kenyoru, Kepha Onyoni and James Mecha Monyenye to who he gave vacant possession of the sold portions and the said persons have all along lived on the land to date as evidenced by sale agreements annexed and marked JGC-(a-d). 4.That unknown to the deceased, the estate property was fraudulently transferred under entry No. 2 in the green card to one Ajonathan muteu Kilungu who then worked in the lands registry and subsequently transferred severally and finally subdivided into several portions. That upon demise of the deceased he was buried on the original land in 2007. That the deceased filed a suit in Kisii High Court being Civil Case No. 79 of 1995 when he discovered fraud committed in his land which case the applicant learnt was abated, as evidenced by copies of proceedings marked JGC-2. 5.That through several fraudulent entries into the land register the applicant learnt that the original parcel Bukira/Bwisaboka/845 was subsequently sub-divided into several portions vide a mutation dated 16/10/2012 marked JGC-3. That the applicant know of his own knowledge that persons who claim to have acquired titles from illegal transfers of the original title Bukira/Bwisaboka/845 upon subdivision have made efforts to take possession of their parcels but have failed to do so as the beneficiaries of the estate of the deceased herein remain in actual possession of the original parcel which is now subject of this Succession proceedings. 6.That attempts have been made by persons who acquired illegal titles to the estate property out of subdivision of the original title Bukira/Bwisaboka/845 to use the criminal system to intimidate and evict legal purchasers of the original title but the DPP refused to approve charges upon careful consideration on circumstances leading to acquisition of titles from the illegal subdivision as evidenced by annexure marked JGC-4. 7.The 2nd and 3rd respondents filed a replying affidavit sworn by them on 28th May 2026 in opposing the application. The grounds are that the applicant is not related to the deceased in any way and that is why he has failed to obtain an introductory letter from the chief or certificate of birth to prove that the applicant is the son to the late Chacha Mwita Masera. That the applicant ought to have brought this kind of claim by way of summons for revocation or annulment of grant hence the application is defective. That the respondents legally acquired a portion of L.R. No. Bukira/bwisaoka/845 before same was muted and they have been in peaceful and uninterrupted occupation of the said land for a period exceeding twelve years now hence they have already acquired the same adversely. 8.That Jonathan Mutua Kilungu is just a businessman and has never worked at the Kehancha Lands Office as claimed by the applicant. That the applicant ought to have sought for an inhibition order and attach copies of the certificate of official searches for all the lands he seeks to revert ownership and not injunctive orders like in the instant case, hence the application has no legs. They also filed supplementary affidavit sworn on 25th June, 2026, in which they averred that parcel L.R. No. Bukira/Bwisaboka/845 was initially owned by 4th and 5th respondents as joint owners while L.R No. Bukira/Bwisaboka/844 is registered in the name of the late Chacha Mwita Masero. 9.That the applicant should claim a portion on parcel LR. No. Bukira/Bwisaboka/844 registered in the name of Chacha Mwita Masera deceased and not LR. No. Bukira/Bwisaboka/845 which is registered in the name of the 4th and 5th respondents as evidenced by annexure marked FMOMOM-1 being the green card. 10.The applicant filed a further affidavit sworn on 18th June 2026 and averred that he has attached a chief’s letter to the succession cause herein which introduces him as a son to the deceased as evidenced by annexure marked JGC-1 in the further affidavit. That the applicant filed the instant application to protect the property of the estate of his late father from intermeddlers as provided for under the law. That no previous succession cause was filed in respect to the estate property as to necessitate the filing of summons for revocation of grant. That the process of acquisition of the parcels by the respondents was illegal and hence amendable to challenge under the law since there existed a challenge over the alleged acquisition of the original property in Migori High Court Case No. 79 of 1995 which subsequently abated upon the death of the deceased herein. 11.The court on 29/5/2026 directed that the application be canvassed by way of written submissions. The applicant as at the time of writing this ruling on 8/7/2026 had not filed his submissions. The 2nd and 3rd respondents filed submissions reiterating the averments contained in their replying affidavit and supplementary affidavit. DeterminationSUBDIVISION - The First issue for determination is whether the applicant has locus standi 12.I have carefully perused the record and find that no grant has been issued in the succession cause. The instant application was filed on 14/5/2026 whereas the succession cause was gazette on 25/5/2026 meaning the grant was to be issued after 30 days of the said notice on 26/5/2026 if there was no objection. 13.It is trite law that a suit filed before the Applicant is issued with a grant of letters of administration in respect to the estate of a deceased person is an incompetent suit. In the cases of Daniel Njuguna Mbugua v Peter Kiarie Njuguna & 2 others (2021) eKLR and Isaya Masira Momanyi v Daniel Omwoyo (2017) eKLR, the Courts struck out suits that had been filed by parties prior to obtaining grants of letters of administration. The Courts separately held that the Plaintiffs in the cases lacked capacity and/or locus standi to file the suits on behalf of the estates of the deceased persons. In the latter case the Court stated that the suit was incompetent and an abuse of the process of the Court. 14.In the case of John Marete Kirema & another v Gladys Karimi M`Muthamia & 3 others (2013) eKLR where it was argued that the Applicant did not require a grant of letters of administration to pursue an application under section 45 of the Law of Succession Act and in that case Makau J. (as he then was) held that:“….an intended administrator or a person who has made a petition to be appointed as administrator is not a personal representative of the deceased person and therefore has no locus standi to bring any action independent or within the petition until a grant of letters of representation has been made to him or her as case may be. I therefore do not agree as this is a petition cause and not a civil suit as submitted by the counsel for the applicant, he does not require grant of letters of administration to pursue the application under Section 45 of the Law of Succession Act.” 15.In the absence of a grant, the Applicant herein has no locus standi to deal with the property of the deceased in any manner. He cannot move the court for the orders sought with a view to administering the estate of the deceased because of the lack of capacity. The applicant lacks locus since he has to be appointed first and then be able to take up his role as an administrator and be in a position to mount the claim as herein. This position is fortified decision the case of the Estate of Rajesh Pranjivan Chandasame [2014] eKLR the Court stated as follows: -“…. It is common ground that at the time of institution of the said summons the respondent was not in possession of grant of letters of administration. The respondent acknowledges that he may have known of the existence of the will but according to time he doubted the validity of the will. In his view therefore the deceased died intestate. As far as he was concerned he moved to court by virtue of being a beneficiary for purposes of preserving the decease’s estate. That may well be the case but in our view the position in law as regards locus standi in Succession matters is well settled. A litigant is clothed with locus standi upon obtaining a limited or full grant of letters of administration in cases of Intestate Succession.” 16.Further in the case of Isaya Masira Momanyi -vs- Daniel Omwoyo & Another [2017] eKLR the Court held as follows: -“… It is trite law that the estate of a deceased person can only be represented in any legal proceedings by a person who is duly authorized to do so on behalf of the estate. Only a person who has been issued a grant of letters of Administration has capacity to represent the estate of a deceased person.” 17.The wording of Section 45(2) (b) of the Act offers more insight as to the need to have a Grant in place. The provision ensures that once a person is adjudged an intermeddler, such is answerable to an Administrator or Executor as the case may be. In this instance, since the Applicant is purporting to sue in the estate of his deceased parent and there is no grant of representation in place, there would be no one as provided to by section 45(2)(b), for the alleged intermeddler to be accountable to in the event the application succeeds. 18.In Veronica Njoki Wakagoto (Deceased) [2013] eKLR Hon. Musyoka, J. while speaking to intermeddling and the legal standing a person has in an estate of the deceased person observed thus;“…. The effect of section 45 is that the property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorized to do so by the Law. Such authority emanates from a grant of representation and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.” 19.Faced with a similar predicament as in the instant cause, the Court in Succession Cause 8 of 2020, In Re Estate of James George Maruti (Deceased) [2021] eKLR declined to hear an application seeking restraining orders in respect of a deceased estate because the Applicant did not have locus standi. The Court held as follows:“…. The applicant may be having a cause of action or interest as a beneficiary to protect and preserve the estate or intermeddling and waste. She however has lacked locus standi to secure the relief sought. Without first obtaining either limited or full grant of letters of administration. I therefore uphold the Preliminary Objection and find that the applicant had no locus to file the application.” 20.In the instant application, I hold the view that the application is incompetent for having been filed before a grant of letters of administration was obtained. It is a grant of letters of administration that gives a person the mandate to deal with the property of a deceased person. This is made clear by section 82(a) of the Law of Succession Act which lists the powers of a personal representative to include –“to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate.” 21.The above clearly shows that the court has spoken enough to demonstrate that the application suffers a false start as the applicant lacks locus standi. A consideration of the other issue on whether the application has merit become moot. Disposition: 22.In conclusion I find that the applicant lacks locus standi and hereby issue the following orders:-1)That the applicant lacks locus standi to institute the application dated 14/5/2026.2)That the application dated 14/5/2026 be and is hereby struck out with costs to the 2nd and 3rd respondents for lack locus standi. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KEHANCHA ON THIS 10TH DAY OF JUNE, 2026 VIRTUALLY VIA MICROSOFT TEAMS.J.P. NANDISENIOR PRINCIPAL MAGISTRATEIn the presence of:Mr. Enock…….Court AssistantPetitioner/Applicant………..absentRespondents………absentAdvocate for Petitioner……..N/AAdvocate for 2nd and 3rd respondents……Mr. Muniko present